Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 102

FSCO A06-000399

BETWEEN:

Ms. T.N.

Applicant

and

THE PERSONAL INSURANCE COMPANY OF CANADA

Insurer

DECISION ON A MOTION FOR INTERIM BENEFITS

Before: Arbitrator Suesan Alves

Heard: Toronto on February 11, 2010; submissions were received by January 5, 2011

Appearances: Kevin Doan for Ms. N

Phillipa Samworth for The Personal Insurance Company of Canada

Issues:

Ms. N brought a motion for interim attendant care benefits¹ pursuant to section 279 (4.1) of the Insurance Act, R.S.O. 1990, c.I.8. The Personal disputed that Ms. N established entitlement to that relief. Both parties sought conditions with respect to any award of interim attendant care benefits.

On November 26, 2010, I issued an Order in this matter, with reasons to follow. The Order provided that:

1. The Applicant will be referred to as Ms. T. N. in the style of cause, and as Ms. N in the decision.

2. The Personal Insurance Company of Canada shall pay Ms. N the additional sum of $3,371.20 per month, commencing February 11, 2010, as interim attendant care benefits, pending the further Order of an adjudicator, subject to the following conditions:

a) The Personal shall pay the interim attendant care benefits to counsel for the Applicant in trust for Ms. N at least once every thirty days. The Personal shall provide an advice memo to both Ms. N and to her lawyer of the amount and date of each payment at the time each payment is made.

b) Counsel for the Applicant and Ms. N’s case manager shall develop a plan for Ms. N’s attendant care in conjunction with Ms. N and her husband. In so far as is reasonable and possible, the plan should provide that she is not left alone for lengthy periods of time and should compensate her husband for the provision of attendant care. The Applicant or her counsel shall notify the Insurer of the names of the attendant care providers.

c) The Personal shall not deduct medical and rehabilitation benefits from Ms. N’s attendant care benefits.

3. The Applicant is entitled to interest on overdue benefits at the rate of [undetermined] per cent per month.

4. If there is a dispute as to the expenses of this motion, the parties should follow the process set out in Rule 79 of the Dispute Resolution Practice Code − Fourth Edition, Updated October 2003.

At the time I provided counsel with the Order, I requested additional submissions with respect to the rate of interest. Those submissions were received by January 5, 2011.

I was informed by a Case Administrator that the matter had settled. The Commission’s records also showed this to be the case. On May 28, 2012, I was informed that counsel had made a joint inquiry as to when they might receive the reasons for the interim benefits Order in this proceeding. I was informed that as a result of this inquiry, the Case Administrator contacted the offices of counsel and learned that the matter had not in fact been settled.

I now provide reasons for the Order of November 26, 2010 as well as my further Order and reasons with respect to the rate of interest.

The issues are:

1. Is Ms. N entitled to further payments as interim attendant care benefits?

2. Should conditions be imposed with respect to interim attendant care benefits?

3. Is Ms. N entitled to interest on attendant care benefits?

4. Which party is entitled to its expenses of the motion?

Result:

1. The Personal Insurance Company of Canada presently pays Ms. N $1,685.60 per month as attendant care benefits. The Personal Insurance Company of Canada shall pay Ms. N the additional sum of $3,371.20 per month, commencing February 11, 2010, as interim attendant care benefits, pending the further Order of an adjudicator.

2. This Order is subject to the following conditions:

a) The Personal Insurance Company of Canada shall pay the interim attendant care benefits to counsel for the Applicant in trust for Ms. N at least once every thirty days. The Personal shall provide a memo to both Ms. N and to her lawyer of the amount and date of each payment at the time the payment is made.

b) Counsel for the Applicant and Ms. N’s case manager shall develop a plan for Ms. N’s attendant care in conjunction with Ms. N and her husband. In so far as is reasonable and possible, the plan should ensure that Ms. N is not left alone for lengthy periods of time, and should compensate her husband for the provision of attendant care. The Applicant or her counsel shall notify the Insurer of the names of the attendant care providers.

c) The Personal Insurance Company of Canada shall not deduct medical and rehabilitation benefits from Ms. N’s attendant care benefits.

3. The Personal shall pay Ms. N interest on attendant care benefits at the rate of 2% per month, commencing February 11, 2010.

4. If there is a dispute as to the expenses of this motion, the parties should follow the process set out in Rule 79 of the Dispute Resolution Practice Code − Fourth Edition, Updated October 2003.

EVIDENCE AND ANALYSIS:

Anonymity

Counsel for the Applicant requested anonymity for the Applicant in this decision. Counsel for The Personal took no position on this request. I grant the request of counsel for the Applicant, because of the Applicant’s vulnerability and because of the personal nature of some of the evidence. Instead of her name, I have referred to the Applicant in the style of cause as Ms. T.N. and in the body of the decision as Ms. N.

Decision Outline and Summary

Attendant care benefits are provided under the Schedule to meet an insured person’s need for care and safety following an accident. On this motion, Ms. N seeks attendant care benefits on an interim basis at the rate of $5,056.80 per month from February 11, 2010, ongoing, pending the further Order of an adjudicator.

Ms. N submits that she meets the prima facie test for entitlement to interim attendant care benefits and has shown need and urgency. The Personal submits that on this motion, she must establish that it is reasonable and very probable that she will succeed at the hearing, and has failed to do so. The Personal submits that she has failed to establish either need or urgency, and that Ms. N is not entitled to the relief she claims.

I will first look at Ms. N’s pre-accident circumstances, detail her post-accident physical, cognitive, behavioural, sensory and mood impairments, and determine if her need for attendant care results from the accident or from her pre-accident circumstances. I will set out the test which I believe is appropriate for an award of interim benefits, decide if Ms. N meets that test, then decide which conditions the parties request are appropriate. I will then deal with the questions of entitlement to interest and the rate of interest.

For the reasons which follow, I conclude that Ms. N needs attendant care 24 hours per day as a result of the accident in order to minimize the impact of her accident-related physical, cognitive, behavioural and emotional impairments. I find that she meets the test for interim benefits and has established both need and urgency. I also find that Ms. N is entitled to interest at the rate of 2% per month on overdue attendant care benefits from the date of the motion until the benefits are paid.

Ms. N’s pre-accident circumstances

On October 29, 2000, Ms. N sustained serious injuries in a motor vehicle accident. The Personal agrees Ms. N sustained a catastrophic impairment in that accident. At the time of the accident, Ms. N was 21 years of age, and had completed high school and some college in a tourism program.

Approximately two years before the accident, Ms. N began working part-time as a waitress at a restaurant approximately 22 to 24 hours per week. About 6 months before the accident, Ms. N stopped working at the restaurant, and became self-employed running an equestrian business at the family farm, where she boarded horses and gave riding classes. Ms. N had been competing in equestrian competitions since she was 13 years of age. At the time of the accident, she had completed two of three levels of a certificate in riding instruction with the Canadian Equestrian Federation.

By age 17, Ms. N had been photographed as a model in eight international magazines. While attending high school she had been named athlete of the year on two occasions. At the time of the accident she saw herself “on my way in life as a young, beautiful, energetic, hardworking and responsible young woman, loving life, engaged to be married.”

In 2008, Ms. N married a childhood friend whom she had known since Grade 5 or 6. They live in a rural area because of Ms. N’s love of horses and her desire to resume an equestrian business.

Ms. N’s post-accident physical impairments

On October 29, 2000, Ms. N was a rear seat passenger in a motor vehicle which struck several trees and crashed into a residential roadside mailbox. The mailbox struck her face and head, shattered the right side of her face and fractured her skull.

I find Ms. N sustained severe injuries to her brain, skull, jaw, face and teeth as well as soft tissue injuries in the motor vehicle accident.

Brain injuries

Ms. N had a Glasgow Coma Scale score of 7 at the scene of the accident, indicative of a severe brain injury. Herniated brain tissue oozed from her skull fracture and from her right temporo- mandibular joint.

On CT-Scan, multiple indistinct pools of blood were noted within the brain tissue of her right temporal/parietal lobes. There was massive right temporal soft tissue swelling and herniated brain tissue. There were findings consistent with swelling and/or spots of dead brain tissue caused by a lack of blood flow along the front and right side of her brain. Her cerebral angiogram showed that there had been traumatic dissection of her right internal carotid artery.

Ms. N underwent emergency neurosurgery in which extensive reconstruction of her skull took place, bone fragments removed, a dural tear repaired and her mastoid air cells packed with bone wax and fat.

Skull and jaw fractures

Ms. N sustained a complicated comminuted depressed skull fracture involving her frontal, temporal and parietal bones. Her temporal bone was destroyed, exposing herniated brain.² She had surgery to repair her right skull fractures on November 15, 2000.

There was a fracture involving the roof of her right eye socket; a fracture extending through the base of her right skull involving the right side of her eye socket and right sphenoid sinus. Her right mastoid process was torn from her temporal bone. She had a fracture of her right cheek bone and a right ear laceration which extended down her cheek.

Ms. N’s right temporo-mandibular joint was partially destroyed.

Injuries to her ear, eye, face and teeth

Ms. N’s right middle ear was damaged and there was fluid in her ear. Ms. N has a permanent hearing loss in her right ear as a result of the damage to her 8th cranial nerve. She also experiences constant ringing in that ear.

She had right sided facial paralysis as a result of the damage to her 7th cranial nerve which also affects her biting and chewing.

Since the accident, Ms. N has undergone numerous reconstructive surgeries on her face, skull and in relation to her right eye. She is now able to smile, however she continues to have a palsy on the right side of her face. She remains self-conscious about the changes in her appearance.

Ms. N continues to have difficulty closing her right eye and experiences constant dryness and pain in that eye, as well as sensitivity to light. She has an upper left quadrant visual field loss, which causes her to bump into things. It is one reason her driver’s licence was suspended in 2006.

As of March 2008, Ms. N is reported to continue to have mild dysarthria, a motor speech disorder in which the muscles of her mouth, face and respiratory system may become weak or move slowly after a brain injury.

Ms. N experiences pain in her right temporo-mandibular joint, jaw pain with chewing and yawning and hears a clicking sound when opening and closing her mouth. She has had dental work to restore her bite and root canals in four teeth which were broken in the accident.

Lacerations and contusions

Ms. N had multiple lacerations on her face, chin and left temporal area, which were sutured. A plastic surgeon addressed her right cheek laceration and sutured her left forehead. She had multiple bruises. She also sustained a left pulmonary contusion.

Musculoskeletal injuries

Ms. N sustained soft tissue injuries to her neck, lower back and shoulder in the motor vehicle accident. Her right upper arm was mildly spastic.

She suffers from headaches as well as pain in her neck, low back and shoulder. She experiences daily pain in her low back which goes into her sacroiliac joints. She rates her back pain as 5 out of 10; however, it can go up to 8 out of 10. Pain disrupts her sleep.

In 2004, her then psychiatrist, Dr. Sumner, diagnosed her as suffering with depression secondary to chronic pain.

In February 2008, Dr. J. Kwok, orthopaedic surgeon, reported on Ms. N’s ongoing musculoskeletal impairment and significant functional limitation. He reported she had a right shoulder impairment, left lower extremity impairment, spine impairment and chronic pain.

In his opinion, Ms. N has significant physical limitations with respect to tasks which involve lifting, carrying, overhead reaching/lifting, pushing/pulling; frequent bending; squatting, kneeling, stooping, climbing and prolonged sitting/standing/walking. When she bends, lifts or cleans, her pain gets worse.

In July 2008, Dr. D.J. Ogilvie-Harris, orthopaedic surgeon, reported that Ms. N’s ongoing neck and low back pain has been consistent and persistent among many examiners and lasted well past the two-year period during which soft tissue injuries ordinarily heal. In his opinion, Ms. N will continue to have ongoing pain and functional deficits in her musculoskeletal system, particularly her thoraco-lumbar spine. In his opinion, the most likely cause for her pain was soft tissue injuries and possible damage to her discs or facet joints.

In his opinion, Ms. N has difficulty with prolonged sitting, standing, bending, lifting, twisting or turning, as well as with impact activities such as riding a horse. He noted that she also has problems with dynamic balance.

Dr. Ogilvie-Harris opined that because of the interaction between her brain injury and her physical impairments, she has experienced difficulty learning and remembering compensatory strategies for her physical impairments.

Dr. Ogilvie-Harris reported that Ms. N suffered from generalized fatigue. She also suffers from pain in her left leg and hip as a result of the bone, nerve and muscle grafts taken from those sites for use in her reconstructive surgeries. He recommended that Ms. N continue with palliative treatment such as osteopathy, chiropractic and massage. In his opinion, these treatments are medically essential.

In 2007, Ms. N was diagnosed as suffering from a pain disorder by Dr. Feinstein, neuropsychiatrist. In 2008, Dr. P. Wright, psychologist, and Dr. R. Klassen, psychiatrist, made similar diagnoses.

Pain management

Following the accident, Ms. N was treated with several medications to manage her post-accident pain and personality change.

In about April 2006, Ms. N decided to discontinue the analgesic and psychotropic medication which had been prescribed for her and began using marijuana for pain relief. Ms. N’s decision did not meet with the approval of Dr. Watts, her family physician at the time, or with Dr. Seyone, her psychiatrist at the time. Dr. Watts opined that Ms. N’s use of marijuana was complicating the management of her frontal lobe deficits, and that she had been more psychologically stable on her prescription medications. Dr. Seyone insisted that the medications he prescribed to help her manage conflict, her impulsivity and mood formed an essential part of her treatment. Ms. N’s priority was addressing her pain. Dr. Watts and Dr. Seyone terminated their relationships with Ms. N over this issue.

Ms. N was able to obtain prescriptions for marijuana in the form of the drug Indica. She also purchases parts of the marijuana plant from a Compassion Centre with prescriptions from a family physician and psychiatrist. In about February 2010, she obtained a card from Health Canada which allows her to legally possess a certain quantity of marijuana.

In 2007, Dr. Feinstein, neuropsychiatrist, suggested that Ms. N’s circumstances called for some flexibility. He noted that Ms. N had been able to obtain pain relief from marijuana, and as a result, had discontinued medication such as Tylenol 3, Oxycontin, Percocet and morphine. While the discontinued analgesics were effective, all have significant side effects including sedation, dependency and a deleterious effect on her condition.³ She was also able to discontinue her antipsychotic medication. Thus, coming off of those medications offered her certain benefits. Dr. Feinstein noted that Ms. N was adamant that she would not return to the above prescription medications and could not be forced to take them.

Dr. Feinstein recommended that in the unusual circumstances of this case, a three-month trial of Indica could be carried out under close supervision, and the impact on Ms. N’s impulsivity and behavioural disinhibition considered. If on reassessment Indica proved to be therapeutic and troubling side effects were absent, treatment could continue. He acknowledged that his recommendation was controversial. It is not clear to me whether the recommendation of Dr. Feinstein has ever been implemented by the parties as a way of resolving their dispute as to whether The Personal should pay for Ms. N’s medical marijuana.⁴

Ms. N is unable to pay for the amount of marijuana she needs to manage her pain. She also medicates her pain with alcohol as a supplement to marijuana. She usually uses beer, has now developed an alcohol abuse problem, for which she is awaiting treatment.

Ms. N’s husband testified that when Ms. N is by herself, she does more drinking, as evidenced by the number of empty beer cans he sees when he returns home. He testified that when Ms. N uses alcohol to medicate her pain, she becomes more aggressive, swears a lot more, is more easily excited and more prone to anger and to violence. He testified that on one occasion, Ms. N was a passenger in the front seat of the car, drinking, started getting angry, kicked the windshield and broke it. She has also bolted from their moving car when angry.

In March 2008, Dr. R. D. Gates, psychologist, reported that Ms. N seemed to be unaware of the heightened risk she faces in using alcohol to manage her post-accident physical pain. He further reported: “I pointed out to her that using alcohol in combination with finding herself in aggressive conflict with other persons creates a very serious risk of further brain injury. The other problem with the use of alcohol is that she becomes more volatile, more prone to anger, combative, agitated and aggressive and at risk for yet another severe head injury. Needless to say the outcome of such a scenario would be devastating for her.” Dr. Gates’ opinion confirms the testimony of Ms. N’s husband of the impact of alcohol on Ms. N’s mood and behaviour.

Attendant care benefits are provided so that an insured person’s need for care and safety can be addressed following an accident. There is no suggestion that Ms. N had pre-accident cervical or lumbar injuries; post-accident she has chronic pain. There are opinions, which I accept, that Ms. N has chronic pain as a result of the October 2000 accident. I find that her pain and her need to obtain relief from that pain directly result from the accident.

When The Personal provided Ms. N with chiropractic and osteopathic treatment, she was in less pain and cut down on the amount of alcohol she used to medicate her pain. She increased her use of alcohol when The Personal terminated these treatments. Ms. N’s behaviours are now attracting criminal charges and possibly civil litigation.

In light of the impact of self-medication of her post-accident pain with alcohol, and the risk of another severe head injury, I find that Ms. N requires 24 hour a day attendant care pending successful treatment of her alcohol dependence and a long term solution for her pain management which does not include alcohol. This is a safety issue.

I will now deal with the evidence concerning Ms. N’s cognitive, emotional, sensory and behavioural impairments. These impairments are additional reasons for her need for attendant care 24 hours a day.

Cognitive, emotional, behavioural and sensory impairments

Ms. N has been evaluated and treated by several psychologists and psychiatrists following the accident of October 2000.

During a neuropsychological examination, a psychologist examines brain-behaviour relationships to determine which functions are impaired, the level of impairment and the reason for the impairments. The assessment is conducted using tests which have been validated, and shown to have acceptable levels of sensitivity and specificity. The psychologist interprets the scores from individual tests and the overall profile, having regard to the person’s intellectual level, language and educational background, affective states, effort and motivation.⁵

Shortly after the accident in 2000, Dr. T. Hunt, psychologist, performed a neuropsychological assessment. Dr. Hunt opined that Ms. N’s impairments involved her right frontal and parietal lobes. He reported that Ms. N had problems with disinhibition and impulsivity, with executive function, verbal abstract reasoning, mental arithmetic and with analyzing complex visual stimuli.

In 2002, Dr. L. Freedman, psychologist, performed another neuropsychological assessment. He opined that Ms. N’s right orbitofrontal and ventromedial cortex were damaged in the accident. As I understand Dr. Freedman’s opinion, he provides a more precise location of the damage to the frontal and pre-frontal lobes of Ms. N’s brain, which gives rise to Ms. N’s behavioural disinhibition.

In 2008, Dr. Gates, psychologist, opined that Ms. N’s test profile paints “a very clear picture of dysfunction involving the anterior right quadrant of her brain. She exhibits motor, sensory and cognitive impairments that reflect disruption of the cerebral systems within the right parietal-temporal-frontal axis.” In his opinion, these impairments are stable and permanent.

All three psychologists, Dr. Hunt, Dr. Freedman and Dr. Gates, opine that Ms. N’s impairments are consistent with her clinical history. I accept their evidence in the absence of the radiological reports or hospital records having been filed.

I find a great deal of consistency in much of the psychological and psychiatric evidence in relation to Ms. N’s impairments.⁶ There is conflicting evidence, however, with respect to whether pre-accident Ms. N had mood problems and borderline personality traits and if so, the extent to which any such problems contribute to her post-accident dysfunction. I deal with these conflicts below.

Cognitive impairments

I find that Ms. N’s sustained a severe traumatic brain injury and that as a result, she has cognitive problems in the areas of perceptual, cognitive and executive function. I find that she has cognitive impairments with respect to problem solving, information processing and active memory; with multitasking, planning and organization; impulsivity and disinhibition, as well as perceptual impairments. I find that she has a relatively poor understanding of some of her neurocognitive difficulties.

Ms. N complains that following the accident she has limited attention when she is fatigued, cannot multitask, loses her train of thought very easily, and when watching a movie, cannot follow the entire plot. Ms. N complains that her short term memory is inefficient. I find that the examples she has provided and which are contained in the narrative occupational therapy reports which accompany the Form 1s, reflect that these problems give rise to safety issues. She leaves the kettle on by mistake, forgets to eat, burns food on the stove, has left bacon cooking on the stove which led to a fire, lights candles then falls asleep, forgets to close and lock windows and doors to the house and has forgotten she had turned the water on while feeding the horses leading to the well running dry.

Dr. Gates opines that Ms. N has a significant problem with her active memory, cognitive processing speed, executive function, limited judgement and poor insight. On formal neuropsychological testing, Ms. N’s short term memory or passive memory has been consistently reported to be average. However, when her active memory was assessed by Dr. Gates on the working memory index, a test which assesses active memory − her ability to take in and remember new information, hold it in short-term memory, concentrate and manipulate new information to reason or produce a result − her scores were in the low average range, at the 9th percentile.

Dr. Gates also assessed Ms. N’s processing speed, that is to say, how quickly she can carry out cognitive processes. Her scores fell in the low average range at the 9th percentile. In Dr. Gates’ opinion, Ms. N’s information processing speed was generally slowed and she showed generalized weakness on her ability to multitask. In his opinion, she has poor executive function skills, limited judgement, and poor insight.

Similarly, when Dr. P. Wright, psychologist, assessed Ms. N, he found that her memory was average; however, he reported that her problems with memory function show up on testing when she is multitasking. In Dr. Wright’s opinion, this is a problem with executive function rather than memory per se, in that Ms. N forgets to do what she plans to do.

Executive function is the set of cognitive skills responsible for planning, initiation, sequencing and monitoring of complex goal-directed behavior. Working memory relies on the pre-frontal cortex, and is considered either a part of executive function or a fundamental cognitive ability on which executive function depends. It would appear that Dr. Gates and Dr. Wright agree that Ms. N has a significant problem with using active memory. I accept their opinions on these points.

In a social setting, Ms. N’s problems with working memory make it likely that she will misinterpret a situation. She may fail to appreciate the risk a situation presents for her. Her decreased processing speeds mean that she cannot shift very quickly between old and new information, and think flexibly on her own to solve problems or quickly readjust her behaviour.

One illustration of this took place in 2007, when she and her father went to a bar. While they were having a drink, a man approached her and invited her to dance. Ms. N accepted his invitation and joined him. The man then wanted her to leave the bar with him in his car. She entirely forgot about her dad, that he was there with her, and accompanied the man outside to his car. Her father came looking for her and interrupted the man’s attempt to get her into his car.

As she has problems with disinhibition, she has difficulty controlling her initial responses, for example swearing may be her initial response when angry or irritated, not a tactful statement. In the opinion of Dr. Gates, instances of Ms. N’s impulsivity, poor judgement, anger, aggression, violence and immaturity have been repeatedly documented. Ms. N described a number of such instances in her Affidavit. In 2002, she impulsively drove a vehicle against her parents’ advice during a winter storm, lost control of the car and caused a collision. A similar incident and accident occurred in 2005 and she was charged with careless driving.

Her driver’s licence is under suspension because of her upper left quadrant vision loss and because she has accumulated demerit points, yet, she has driven vehicles since her suspension, placing herself, as well as members of the public at risk. She testified that on one occasion she decided to move the car after she had been drinking, was unaware that she struck the side mirror of another vehicle while doing so, someone called the police and she was then charged under the Criminal Code.

On one occasion in 2006, she was noted to have assaulted one of her brothers. In 2008, her brother fractured four of her ribs when he tackled her during an argument at their parents’ home. Ms. N states that when the police were called, they informed her that she was the problem and did not lay charges against her brother.

Occupational therapists report that Ms. N has problems with planning, organizing and difficulty initiating and planning her day. This results in a lack of direction and drift during her day.

Behavioural impairments

I find that as a result of the October 29, 2000 accident, Ms. N also developed behavioural impairments. In terms of her behaviour and psycho-social skills, she describes herself as “snappy” if she does not get her sleep. She can be very argumentative when provoked, throws objects when she loses her temper and interrupts others. She has noted that her family cannot tolerate her volatility and yelling. Her mother has obtained a restraining order preventing her from going to the family home where she resided before the accident and for a period following the accident.

Sensory impairments

I find that Ms. N also has sensory impairments as a result of the accident, namely an upper left quadrant vision loss, a hearing loss in her right ear, constant ringing in that ear, mild dysarthria; and problems with dynamic balance. I find that she has a pain disorder as a result of the accident. I find her pain is a source of her irritability.

Emotional impairments

Mood

Ms. N described her mood following the accident as being “like a roller coaster.” She was diagnosed with and treated for mood problems following the accident including anxiety, depression, irritability and emotional lability. In January 2005, Dr. Seyone, a neuropsychiatrist, diagnosed Ms. N with a depressive disorder due to a general medical condition, namely a traumatic brain injury. He treated her with medication for increased anxiety and depression, sleep disruption, weight loss, family stress, anger, sadness and amotivation.

At times assessors opine that she was experiencing a major depressive disorder; at other times the assessors opine that she was experiencing a dysthymic disorder, or a chronic low grade depression. I accept Ms. N has developed difficulties with mood post-accident.

In 2008, Dr. P. Wright, psychologist who assessed Ms. N on behalf of the Insurer, offered the opinion that Ms. N’s pre-accident traits or disorders have an impact on her post-accident mood. Given the many losses Ms. N has experienced following the accident, I find the predominant and better explanation for Ms. N’s post-accident mood impairment is the motor vehicle accident of October 29, 2000.

Personality change

Based on the reports filed on this motion, I find all the psychologists and psychiatrists opine that Ms. N sustained a personality change as a result of the traumatic brain injury she sustained in the accident on October 29, 2000. I accept that evidence.

On this motion, The Personal submits that Ms. N’s pre-accident traits and familial dysfunction are the reason Ms. N requires attendant care. I reject this submission and prefer the evidence that the predominant reason Ms. N requires attendant care is the traumatic brain injury she sustained in the October 2000 motor vehicle accident.

Personality change can be so significant following a traumatic brain injury that the injured individual will be diagnosed with borderline personality disorder. The treatment of Ms. N’s personality change posed a significant challenge. Dr. Seyone, her treating neuropsychiatrist, tried an extensive number of medications to treat her frontal lobe dysfunction and help her better manage conflict.

In 2006, Dr. Seyone noted that those medications had “mildly muted” her dysfunction. Dr. Seyone appears to have first offered the diagnosis of borderline personality disorder when in April 2006, against his advice, Ms. N discontinued the medication Dr. Seyone prescribed. After discussion with Ms. N, Dr. Seyone amended his diagnosis to one of pre-accident borderline personality traits.

I accept that Ms. N’s behaviours between June and September 2006 following her decision to stop medication would cause many assessors to consider these diagnoses; however, there is very limited evidence that such extreme behaviour was part of her pre-accident function or psychological makeup.

The Personal also relies on the opinion of Dr. Gates, psychologist who saw Ms. N at the request of her lawyer, that her pre-accident personality traits “were a live variable.” The Personal relies on the opinion of Dr. Wright, psychologist, who assessed Ms. N on behalf of the Insurer that “significant though difficult to quantify cluster B personality traits” played a role in her difficulties with mood and impulse control. Dr. Klassen, psychiatrist who assessed Ms. N on behalf of the Insurer, opined that she had “possible premorbid borderline and or histrionic traits.”

Dr. Klassen acknowledged that in making that diagnosis, he did not have access to Ms. N’s pre-accident history from persons who knew her and that it was unlikely that Ms. N would have been diagnosed with such traits prior to the accident. On this motion, Ms. N presented evidence about her pre- and post-accident function, from people who knew her prior to the accident, as set out below.

In determining the weight to be given to the opinions on which The Personal relies, I have considered the contrast between her pre-accident and post-accident levels of function, the history of Ms. N’s difficulties and the circumstances of those diagnoses.

From the time of the October 29, 2000 accident, until approximately five and a half years following her injury, Ms. N’s personality change and mood impairments were consistently attributed to her brain injury and sequelae.

In 2002, Ms. N’s mother reported to Dr. Freedman, who was conducting a neuropsychological assessment of Ms. N, that her daughter had undergone a personality change following the October 2009 accident. She complained that Ms. N had become irritable, impulsive, interrupted others, was impatient and used foul language.

Other assessors attribute the cause of Ms. N’s ongoing emotional and psychological difficulties to the motor vehicle accident. For example, Drs. Hunt, Freedman and Gates all opine that Ms. N’s clinical presentation is consistent with the nature of her traumatic brain injury. In June 2007, Dr. Feinstein, the Director of Neuropsychiatry program at Sunnybrook, diagnosed Ms. N with a personality disorder due to a general medical condition, namely her brain injury. She had a major depressive disorder, cognitive disorder and pain disorder associated with psychological factors. He noted a severe traumatic brain injury with damage to cranial nerves 7 and 8, significant functional limitations with a global assessment of functioning score of 40. He felt that she had ongoing impairment in relation to her accident.

Dr. Z. Waisman, psychiatrist, considered Dr. Klassen’s report and opined that Dr. Klassen had overemphasized the role of Ms. N’s pre-accident family history and failed to give sufficient weight to the severity of her injuries. In his opinion, Ms. N’s ongoing emotional and psychological difficulties were very clear sequelae of a traumatic brain injury.

I prefer and accept the opinions of Drs. Hunt, Freedman, Feinstein and Waisman. I find that the better explanation for Ms. N’s behaviours and ongoing emotional and psychological difficulties is the brain injury she sustained in the motor vehicle accident of October 29, 2000.

Even if I am wrong, each of the assessors on whose evidence The Personal relies, acknowledged that such pre-accident traits were exacerbated by the motor vehicle accident. In my view, that evidence, taken at its highest and best, establishes that Ms. N’s accident-related impairments materially contribute to her post-accident dysfunction. Thus, The Personal must respond to Ms. N’s need for attendant care.

Pre- and post-accident function

Ms. N deposes that before the accident, she was a dedicated, responsible, calm and rational person. One of the exhibits to Ms. N’s Affidavit is a signed letter from her high school math teacher and basketball coach, in which he describes Ms. N as “a gifted athlete, a uniquely well rounded woman and a positive role model for others.”⁷

Ms. N’s husband, who married her in 2008, testified that he had known the Applicant since she was in Grade 5 or 6. He agreed that the letter from her high school math teacher and the other letters annexed as Exhibits to Ms. N’s Affidavit, provide an accurate description of Ms. N prior to the accident.

I accept the evidence of Ms. N, her husband, and her former math teacher as to Ms. N’s pre-accident behaviour and function. I also accept the evidence with respect to her mother’s report of the nature of her post-accident personality change, made to a psychologist in 2002.

Prior to the accident, Ms. N lived with her brothers and parents at the family home. Post-accident, she has become estranged from them. One brother fractured four of her ribs during an argument; another brother did not invite her to his wedding. Her mother obtained a restraining order preventing her from entering the family home. As Ms. N puts it, “my family has a hard time dealing with my volatility and yelling.”

Pre-accident, she was the athlete of the year two years in a row while at high school. At age 13, she was competing and winning championship awards in relation to her riding. Pre-accident, she was able to board horses, provide lessons and interact with her customers at the stables. Both of her pre-accident jobs involve customer service. Post-accident, she had difficulty handling and riding horses, problems with dynamic balance, and yelled at and lost customers.

Prior to the accident, Ms. N had no difficulty holding down a job, as an employee or as a self employed person. Following the accident, Ms. N has had limited success as an employee or as a self-employed person. When she attempted to work in a restaurant after the accident, she quickly found that she could not tolerate the noise levels, experienced confusion, and found that the work aggravated her musculoskeletal complaints.

When she attempted to return to her equestrian business following the accident, Ms. N found the physical demands too difficult because of her post-accident physical impairments. She forgot aspects of animal care when distracted and would forget to do certain tasks at certain times as she had planned. Dealing with customers was a struggle for her; she would yell at them and get into disputes. She progressively lost riding students as well as her boarded horses. A horse trainer she hired to help her with the heavier aspects of the job sexually assaulted her while she was under the influence of Percocet and alcohol. Eventually, her father closed down that equestrian business.

Ms. N then tried a range of jobs. Generally, she would function adequately for a time, encounter problems with musculoskeletal pain, get into trouble because she needed to sit down when she was required to stand continuously, because of poor performance, not completing work, lateness, forgetting to do tasks or having an emotional outburst. At one point she worked at her father’s car dealership doing clerical work and was let go. She presently works for a relative on an as needed basis photocopying and binding papers and earns between $20 and $100 per month.

I accept that prior to the accident Ms. N used drugs recreationally with friends on weekends and also drank alcohol; however, there was no suggestion that she required a comprehensive treatment program for alcohol dependence.

Ms. N distinguishes between her pre-accident recreational and social use and her post-accident use of marijuana for pain relief and when that is not available, her use of beer to medicate her pain. Her post-accident drug and alcohol use is largely solitary in nature with a view to medicating her post-accident physical pain.

The stark contrast in her function before and after the accident, across the areas of inter-personal relationships, ability to work, and to structure her day, lead me to conclude that the accident related impairments are the dominant contribution to her post accident need for attendant care. Thus, The Personal is responsible for the provision of Ms. N’s attendant care as a result of the impairments she sustained in the October 2000 motor vehicle accident.

Attendant care benefits:

I find Ms. N needs attendant care to minimize the impact of her post-accident impairments. I find the actual provision of attendant care 24 hours per day, seven days per week to be the reasonable and necessary response to the impairments she sustained in the motor vehicle accident.

Ms. N describes her attendant as someone who would work with her, provide assistance and companionship and help her to occupy her time meaningfully. Her attendant would provide her with more structure to her daily routine, support to complete household chores and animal related chores, without elevating her pain symptoms. Her attendant should be a person comfortable with animals and close to her age. On weekdays, she would like the attendant to be her friend Anne, who has worked with her in the capacity of a rehabilitation social worker; on the weekend, she would like the attendant to be her husband.

What she does not want is “one-on-one supervision.” By this, I understand Ms. N to mean that she does not want someone bossing her around. Instead, she wishes someone who will facilitate her day-to-day function. I do not view Ms. N’s wishes as being entirely inconsistent with the provision of attendant care of a supervisory nature.⁸

The 2009 report by a rehabilitation social worker who met with Ms. N indicates that at least from that worker’s perspective, a facilitative approach with Ms. N worked well. The worker was able to anticipate problems, cue Ms. N to use postures which were less likely to aggravate her pain, cue her to take deep breaths to slow things down, provide her with choices and engage Ms. N in problem solving. As a result, Ms. N was able to provide a more considered response to a problem and solve the problem, instead of becoming angry or reflexively moving to oppositional behaviour.

In my view, an attendant could help Ms. N stay on task by coaching her through the next steps when she multitasks, so that she accomplishes what she intends to do. She could be productive and have a sense of accomplishment, instead of experiencing a lack of direction and drift in her day. An attendant could assist her with preparing meals safely; help her reassess situations when she misinterprets cues, and, to the extent possible, be the level headed individual with judgement and executive function to help her function as if she had not sustained her many accident-related impairments.

An attendant who drives and has access to a car would be able to provide Ms. N with transportation to appointments, to shopping, and to buy animal feed, so that the issue of driving while under suspension, because she lives in a rural area without public transit, could be largely, if not entirely eliminated.

I find that Ms. N’s decreased functional memory give rise to concerns with respect to her physical safety. When cooking she will leave food unattended, go on to do something else, burn food on the stove, and on one occasion, left bacon on the stove which caught fire. She also forgets to close and or lock doors and windows. She forgets to eat. The presence of an attendant may eliminate or minimize the issues around her forgetting to eat, documented as a serious problem in 2006, when she became so emaciated that her psychiatrist sent her for an electrocardiogram. More recently she was required to gain weight in order to have her next reconstructive surgery in relation to her accident-related injuries.

In the opinion of Ms. T. Sivapalan, an occupational therapist who assessed Ms. N in 2008, from an emotional perspective, Ms. N needs to have her mood constantly monitored by someone who is able to calm her down, as she can get angry very quickly.

In terms of sensory impairments, Ms. N has an upper left quadrant field vision deficit, a loss of hearing in her right ear and constant ringing in that ear, a problem with dynamic balance. More recently a rehabilitation social worker noted that she was unable to smell that the cat litter box needed cleaning, suggesting Ms. N may have lost her sense of smell. However, it is also possible that this was a temporary loss.

I find her sensory impairments may compound each other, for example if she were asleep, lying on her left ear in which she continues to be able to hear, and there was a fire, she may not hear a smoke alarm; if she has lost her sense of smell, she would be unable to smell smoke. In my view, even when she is asleep, she will require attendant care because of her sensory impairments. It is foreseeable that in the event of a fire, given her love for animals, difficulties with impulsivity and cognitive impairments, that Ms. N is likely to run back into a burning house to rescue her cat or other animals.

I find that an attendant could also perform aspects of the work Ms. N is unable to do as a result of the limitations reported by Drs. Kwok and Ogilvie-Harris.

I will now address some of the alternatives proposed to 24 hour a day attendant care.

There is at least one report in which Ms. I. Vrckovnik, an occupational therapist, opined that Ms. N required zero hours of paid attendant care. I reject that opinion.

When Dr. Gates was asked to comment on Ms. N’s needs for attendant care, he opined that Ms. N did not need one-on-one supervision. However, Dr. Gates went on to say he did not know for certain if Ms. N would be unsafe living alone. However, he felt that it was reasonable to assume that she would be unsafe, due to her cognitive impairments in the domains of perceptual, cognitive and executive function. He noted that attendant care was usually the domain of occupational therapists and went on to address her treatment and rehabilitation needs. In my view, Dr. Gates acknowledged that he was addressing Ms. N’s treatment and rehabilitation needs; not her safety needs.

Ms. N was reported to oppose the provision of 24-hour a day attendant care and to prefer that an attendant be available to her on a call in basis. As that is not the position she advanced on this motion, I infer that her current view of attendant care differs from that report. If I am wrong in this regard, I agree with the approach taken by Justice Glass in somewhat similar circumstances, to be helpful and appropriate in this case. In Gordon v. Greig (2007) CanLII 1333 (ON S.C.), Justice B.A. Glass stated of a male plaintiff:

He might not like to have someone hovering about to help him, but the bottom line is that he does and always will need help. His brain injuries have taken away his ability to make his way through life on his own.

In my view, there are problems with depending on Ms. N to call out for attendant care. One is that as a result of her impairments, she cannot as of yet appreciate the extent of her cognitive and emotional impairments, despite the efforts of psychologists, a family physician, and a psychiatrist to explain to her the extent of her frontal lobe problems.

For example, in her Affidavit, Ms. N deposes that while many people have told her that she has big mental, physical and cognitive problems, she does not honestly believe that this is the case. Dr. Gates was hopeful that Ms. N, like other individuals who had severe acquired brain injury of the type Ms. N sustained, had the potential for a deeper appreciation of the limitations created by her brain injury and for slow and long term improvement in personal functioning.

One occupational therapist opined that because Ms. N’s does not understand the extent of her difficulties, she will be reluctant to ask for help. Dr. Wright, psychologist, describes the embarrassment and frustration that many patients who like Ms. N forget to do something they planned to do. Should a crisis arise because Ms. N has forgotten to do something she planned to do, she may be too embarrassed to call for assistance.

Ms. N’s impairments include problems with executive function, working memory, slowed cognitive speed, difficulty appreciating risk, difficulty multi-tasking, and problems with impulsivity. In my view, things have spiralled out of control so quickly that it is unlikely, in the throes of reacting quickly to a crisis, she will be able to pause to make the call for assistance. I find the suggested “Lifeline device” could be a useful adjunct to attendant care; however, it is not a substitute. Its use is subject to the same frailties because it depends on Ms. N to initiate the call.

Incurred expenses

Section 16 of the Schedule requires Ms. N to demonstrate that she has incurred the expenses. Even if Ms. N did not in fact receive 24-hour attendant care during the period for which interim attendant care benefits are sought, I find that she nevertheless incurred these expenses within the meaning of section 16 of the Schedule, for the reasons given by Arbitrator Muir in McMichael and Belair Insurance Company Inc., (FSCO A02-001081, March 2, 2005):

It is well established that an Applicant need not actually receive the item or services claimed in order to be entitled to an expense. To do otherwise would allow the insurer to set up the inability of an insured to pay for a benefit as a shield from its obligation under the policy of insurance. It is sufficient that the reasonableness and necessity of the service be established and that the amount of the expenditure can be established with certainty.

Arbitrator Muir’s decision was upheld on appeal and on judicial review.

Entitlement to interim benefits

Test for Interim benefits

Section 279(4.1) of the Insurance Act gives adjudicators the discretionary authority to make interim orders pending the final order in any matter. Arbitrators have disagreed as to the test which should be used to guide the exercise of that discretion.

Counsel for the Insurer submits that on a motion for interim benefits, Ms. N is required to demonstrate that it is reasonable and very probable that she will succeed at the hearing. I disagree.

In Malabanan and Canadian General Insurance Company,⁹ Arbitrator Manji held that “an interim order for payment of benefits is appropriate (i) where the applicant has put forward a prima facie case for entitlement; and (ii) where the applicant has demonstrated some need or necessity or urgency for the interim order pending the final order.”

Arbitrator Manji agreed with existing arbitral jurisprudence “that one threshold criterion for an interim order should be that the applicant must put forward at least a prima facie case for entitlement. That is, the Applicant must produce evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement.” ¹⁰

Arbitrator Manji held that she would not go so far as to require an applicant to present a convincing case for entitlement because she believed “that, in most cases, it would be difficult for an applicant to present a convincing case without presenting his or her whole case.” She relied on the definition of ‘convincing’ in The Concise Oxford Dictionary as: “...leaving no margin of doubt, substantial...” and on the definition of ‘convincing proof’ in Black’s Law Dictionary: “such as is sufficient to establish the proposition in question, beyond hesitation, ambiguity, or reasonable doubt, in an unprejudiced mind.” Arbitrator Manji concluded that “The summary nature of the procedure on an application for an interim order would make it difficult for an applicant to meet this standard.”

Following Malabanan, a number of arbitral decisions proposed more onerous tests, such as requiring an Applicant to establish “a convincing case” or to establish that success at arbitration was “not only reasonable but also very probable.” In Ioannidis and Canadian General Insurance Group,¹¹ Arbitrator Manji had the opportunity to reconsider the tests she proposed in Malabanan, in light of subsequent arbitral decisions. However, she remained of the view that the appropriate test was that expressed in Malabanan.

I agree with Arbitrator Manji’s reasons in Malabanan and in Ioannidis, and therefore apply the prima facie test in this case, that is to say, Ms. N must adduce evidence, which if unanswered and believed, is sufficient to render reasonable a conclusion in favour of entitlement.

I will now determine whether Ms. N has established a prima facie case for entitlement to attendant care, the questions of need and urgency, and then decide which conditions requested by the parties are appropriate.

Has the Applicant established a prima facie case?

To succeed in her claim for attendant care benefits at the main hearing, Section 16 of the Schedule requires Ms. N to establish that as a result of an accident, she sustained an impairment, and incurred reasonable and necessary expenses for services provided by an aide or attendant, to a maximum of $6,000 per month.

For the reasons set out above, I find Ms. N sustained significant physical, cognitive, psychological, emotional, behavioural and sensory impairments as a result of the motor vehicle accident of October 29, 2000, and requires attendant care 24 hours per day to ameliorate the effects of those impairments. I also find that Ms. N has made out a prima facie case for attendant care and has established both need and urgency. My findings are for the purposes of this motion and are not binding on the hearing arbitrator.

Need & urgency

As noted earlier, arbitrators have determined that in the absence of need or urgency, an insured person should generally await the outcome of the main hearing, rather than seek an award of interim benefits. In this case, I find the Applicant has demonstrated both need and urgency.

I find Ms. N has demonstrated financial need. She is not receiving income replacement benefits. The Personal stopped Ms. N’s income replacement benefits. The Personal alleges that Ms. N failed to commence mediation and arbitration proceedings with respect to her income replacement benefits within the times prescribed in the applicable legislation. Ms. N presently earns between $20 and $100 per month working for a relative.

Ms. N testified that she is borrowing $1,500 per month, without interest. She testified that she uses those funds, together with the attendant care benefit The Personal presently pays, for necessaries, including the purchase of medical marijuana and alcohol, to medicate her pain.

Ms. N’s husband testified that he presently works at 3 occupations and covers the mortgage, insurance, food costs, food for the animals, veterinarian bills and other household expenses. He has taken out a loan of about $18,000 at 30% interest.

I accept the evidence of Ms. N and her husband that they do not have the funds to pay for attendant care. I conclude that Ms. N has demonstrated financial need.

While the motion for interim benefits was brought seven weeks before the hearing commenced, counsel advised that they anticipate a year will elapse before the hearing is concluded and a decision on the merits is obtained.

I find urgency in this case, based on Ms. N’s use of alcohol to medicate her physical pain, her resulting aggressiveness, volatility and anger, and the heightened risk for yet another severe head injury as detailed earlier. I find the Applicant has established need, since the services she claims are necessary for her safety and function as a result of the cognitive, behavioural and emotional impairments she sustained in the October 2000 accident.

Conclusion on entitlement to interim benefits

I find Ms. N has established a prima facie case for entitlement to interim attendant care benefits. I am persuaded that I should exercise my discretion to order payment of interim attendant care benefits as requested by the Applicant. The Personal presently pays Ms. N attendant care benefits at the rate of $1,685.60 per month for 56 hours per week or 240.8 hours per month of Level 2 care at the rate of $7.00 per hour. I therefore award the further sum of $3,371.20 per month as interim attendant care benefits.

Conditions

Counsel for the Insurer sought terms and conditions in any Order for increased attendant care.

Counsel for the Applicant submitted that I should not impose onerous requirements on Ms. N to account for the funds, or saddle her with any more administrative tasks, in light of her impairments. During her testimony, Ms. N requested that The Personal make the attendant care payments on a regular basis.

Authority to impose conditions

I accept The Personal’s submission that an arbitrator has the authority to impose conditions when making an interim order by virtue of the provisions of the Insurance Act, R.S.O. 1990, c. I.8, as amended, and of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 as amended, (“SPPA”).

Section 279 (4) of the Insurance Act provides that “... every arbitrator appointed by the Director shall determine issues before them by order and may make an order subject to such conditions as are set out in the order.” Section 16(2) of the SPPA states that: “A tribunal may impose conditions on an interim decision or order.” In the circumstances of this case, I make the Order for further attendant care benefits subject to the following conditions.

To whom should further attendant care benefits be paid?

The Personal seeks an Order that any additional attendant care benefits should be paid to the attendants. Counsel for the Applicant submits that the benefits should be paid to the Applicant.

Section 44 of the Schedule contemplates the payment of benefits to the insured person, to a third party by written direction of the insured, or payment into court. In the ordinary case, I would not hesitate to order the additional attendant care to be paid directly to the Applicant.

In this case, given Ms. N’s evidence of the many competing demands for her financial resources, and my intention that Ms. N use the additional attendant care benefits I have awarded to receive attendant care, I find the most appropriate step is to order the Insurer to pay Ms. N’s lawyer the additional attendant care benefits, in trust, thus ensuring the funds were paid to Ms. N’s attendants, while least impairing her rights.

A December 2009 report by the rehabilitation social worker stated that Ms. N was experiencing difficulty recording her appointments in the right place in her daily planner. On this basis, I accept the submission of counsel for the Applicant, that Ms. N should not be further burdened with administrative tasks at this time. If The Personal requires it, the attendants would provide counsel with monthly invoices for the additional benefits, from the date of this decision, which Mr. Doan would in turn forward to The Personal. Mr. Doan’s office would also be able to track the payments and promptly inform the Insurer of any delay and thus address Ms. N’s concern about irregular payments. This would also minimize the burden on Ms. N of tracking the amounts and dates of payment.

A plan of care

Ms. N testified that she wishes to have attendant care provided by her friend Anne, who is stated to be a rehabilitation social worker. She testified that Anne has provided attendant care, however, Ms. N had not been paying her on a regular basis and Anne has therefore obtained other work. Ms. N still stays with Anne on weekends when her husband is away. Ms. N identified her husband as the attendant she would like to have on weekends; however, he testified that he works at three occupations and estimated that he works out of town two weekends out of four.

The plan should identify the persons who will provide attendant care. For the reasons given by Delegate Makepeace in Stargratt and Zurich North America Canada, (FSCO P01-00045, March 31, 2003) an insurer is entitled to know the identity of the attendants. Accordingly, counsel for the Applicant should provide this information to The Personal.

Insofar as it is reasonable and possible, treatment and attendant care should be arranged so that someone will be with Ms. N 24 hours per day, so that the limited available resources are expended in a way that best meets Ms. N’s needs. In addition, the plan should allow for her husband to be compensated for the attendant care he provides.

Are medical and rehabilitation benefits deductible from attendant care?

The Personal submitted that it should be permitted to deduct chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker treatment from any award of attendant care benefits. I disagree.

The benefits that The Personal seeks permission to deduct are provided under section 14 and 15 of the Schedule. Attendant care benefits are provided under Section 16 of the Schedule. Each section of the Schedule provides for different and distinct services.

The focus of the Schedule is to provide services which meet the needs of an insured person. Under the statutory scheme, an insured person is entitled to medical, rehabilitation and attendant care benefits based on the criteria of need or necessity and reasonableness. In this context, it seems an odd concept to contemplate deducting one equally necessary benefit from another. If that were permissible, then an insured person would be required to choose, for example, between receiving assistance with a bath from his or her attendant, or receiving a physiotherapy treatment.

I am not persuaded that double payment would result from the provision of both attendant care and medical and rehabilitation benefits. Although the Form 1s filed by the Applicant contemplate the provision of attendant care 24 hours per day, 7 days per week, the rate prescribed for care in the completed forms is $7.00 per hour. Effective March 31, 2010, the minimum wage in Ontario became $10.25 per hour.

In a letter dated October 9, 2008, the claims handler informed counsel for the Applicant that the cost of the services of a certified support worker from a private agency which provides attendant care services in Ms. N’s area is $21.00 per hour. If Ms. N purchases attendant care services from that agency, she will be able to purchase approximately eight hours of attendant care per day.

I do not see attendant care and treatment as being mutually exclusive. Had the Legislature intended to permit the deduction of medical and rehabilitation benefits from attendant care benefits it could easily have done so expressly. For these reasons, I am not persuaded that the Legislature intended that other benefits would be deducted from attendant care. For these reasons, I reject The Personal’s submission that I permit the deduction of chiropractic, osteopathic, massage therapy and six hours of rehab social worker and one hour of social worker from any award of attendant care benefits.

Ms. N is on a waiting list for a substance abuse program. I have little information about the proposed program, whether it is outpatient or inpatient in nature. To date, the case law illustrates that the mere fact that an insured person is in a facility will not automatically mean that the insured does not need attendant care. The issue of whether other services duplicate attendant care is fact specific and depends on the services provided by the facility and the needs of the insured person.¹²

In Haimov and ING Insurance Company (FSCO A05-002734, May 9, 2007), Arbitrator Murray held that even though the Applicant was being cared for in an in-patient facility, he nevertheless required attendant care which his family members provided to him while he was a patient in the facility.

In McMichael and Belair Insurance Company Inc. (FSCO A02-001081, March 2, 2005), the Applicant sought attendant care as an interim step in a comprehensive drug treatment program. The Insurer sought a credit for times when it submitted the Applicant would not need attendant care, for example while he was on vacation, or already under supervision while in attendance at the drug treatment program. Arbitrator Muir found that the insured had been acutely in need of attendant care while on vacation; however, he was prepared to consider that Mr. McMichael might not require attendant care during the drug treatment program. Ultimately, he left it to the parties to resolve the fine details and remained seized of the issue. I urge the parties to work out these details in Ms. N’s case.

Frequency of attendant care payments

Ms. N testified that The Personal had not paid attendant care benefits to her on a regular and predictable basis. Section 39(4) of the Schedule obliges an insurer to begin payment of attendant care benefits within 10 business days after it receives the assessment of attendant care needs.

The Personal should make payments of the attendant care benefit at least once every thirty days and provide an advice memo to both counsel for Ms. N and Ms. N of the amount of the payment at the time the payment is made.

Interest

(a) Entitlement to interest

The Applicant seeks interest on interim attendant care benefits. The Insurer alleges that the Applicant breached section 33 of the Schedule and submits that no interest is payable.

I find that as a result of the award of interim benefits, there are two components to the attendant care benefit Ms. N will receive. The first component is the amount of $1,685.60 per month, which The Personal was paying at the date of the motion, and which I infer it continues to pay. As the benefits are being paid, they are not overdue during the period in which they are paid and do not therefore attract interest.

The second component of Ms. N’s attendant care benefit is the additional amount of $3,371.20 per month that I ordered paid as an interim benefit. This order is a resolution of a quantum dispute between the parties, on an interim basis, as to how much additional attendant care Ms. N needs. Several reports and Form 1s addressed this question. Those filed on the motion, dated between 2006 and 2009, contained opinions that Ms. N required between zero hours per day and 24 hours per day of paid attendant care.

The Personal denied Ms. N’s claim for 24 hours of attendant care. Most recently, it relied on the opinion of Ms. Vrckovnik, occupational therapist, in a report of October 2009, which stated that Ms. N requires 240.8 hours of attendant care per month.

In Iankilevitch and CGU Insurance Co. of Canada (FSCO P03-00013, August 31, 2004), Delegate Makepeace considered section 33 of the Schedule. She stated that “s. 33 is a disclosure provision that imposes obligations on the insured person at the earliest stages of her claim.” (Italics added). Entitlement to attendant care is determined by a Form 1, which is usually accompanied by a narrative report. I am not persuaded that the Insurer’s request − that the Applicant identify the persons providing attendant care − made after the latest attendant care report, could be described as being in the earliest stages of Ms. N’s claim.

Delegate Makepeace also held that a purposive inquiry was required, and that the first step in considering an insurer’s attempt to invoke section 33 of the Schedule is to ask if the information demanded was “reasonably required” to determine entitlement to the benefit.

I find the Insurer’s inquiry was made in relation to the first component of attendant care, the component of attendant care for which it was paying. It would have constituted an academic inquiry in relation to her claims for 24 hour per day care, the second component of Ms. N’s attendant care. The Personal had already denied her entitlement to that level of care, based on the Form 1 prepared by the occupational therapist it retained. I am not persuaded that the information the Insurer requested, as to the identity of the persons providing attendant care, would have altered The Personal’s position with respect to the Applicant’s claim for 24 hour a day care.

Section 46(2) of the Schedule states that “the insurer shall pay interest on the overdue amount.” I find that once the benefits are determined to be overdue, the payment of interest is mandatory.

Section 39(4) of the Schedule states that an attendant care benefit becomes overdue 10 business days after an insurer receives the assessment of attendant care needs, or the Form 1. In this case, the latest Form 1 recommending 24 hours per day of attendant care is dated September 9, 2009. Thus by February 10, 2010, the date of this motion, those benefits were overdue. On an award of interim benefits, they therefore attract interest from the date of the motion.

I leave to the hearing arbitrator the question of entitlement to interest on attendant care benefits for the periods before February 11, 2010. For these reasons, I conclude that the Applicant is entitled to interest on the sum of $3,371.20 per month compounded monthly, commencing February 11, 2010, the date of the motion, until the date of payment.

(b) The rate of interest

The second issue is the rate at which interest is payable. Ms. N was injured on October 29, 2000, and claimed benefits under the Statutory Accident Benefits Schedule − Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended. The rate of interest payable under section 46 of O.Reg. 403/96 is 2% per month. Effective September 1, 2010, that Regulation was amended by O. Regs. 34/10 and 35/10. The question therefore arose as to whether interest was payable at the rate of 2%, 1%, or some combination of the two rates.

As there were no arbitral decisions with respect to this question at the time I issued the interim Order, I invited further submissions from counsel as to the appropriate rate of interest. In those submissions, counsel agreed that up to August 31, 2010, the rate of interest is 2% per month compounded monthly. They disagreed on the rate of interest from September 1, 2010 and after.

Counsel for the Applicant submitted that the rate should be two per cent throughout. He submitted that the Applicant’s right to interest under subsection 46(2) of the Schedule is a substantive right which vested as of the date of the accident and that only clear legislative intent can interfere with such rights. Counsel for the Applicant submitted that the onus of establishing such legislative intent is on the Insurer and that the Insurer has not shown such legislative intent. He submitted that public policy and considerations of fairness are against the interference with vested rights. In the alternative, he submitted that the new regulations are ultra vires the Insurance Act. Counsel for the Insurer submitted that effective September 1, 2010, the rate of interest is 1%.

The issue was recently decided in the case of Federico and State Farm Mutual Automobile Insurance Company, (FSCO A08-001138, March 23, 2012). In that case, Arbitrator Murray held that interest was a matter of substantive law, not procedural law. She relied upon the legislative presumption that new legislation did not interfere with substantive rights or vested rights and there was nothing in the legislation which indicated an intention to interfere with vested rights. She considered the statements in the Superintendent’s Bulletin A-04/10 Property & Casualty, “Transition to the New Statutory Accidents Benefits Schedule - Effective September 1, 2010” made with respect to the rate of interest to be confusing, and observed that those Bulletins do not represent law.

Arbitrator Murray held that the applicable transitional rule is that set out in paragraph 2 of subsection 2(2) of the New Regulation, O. Reg. 35/10. She concluded that the applicable rate of interest for Mr. Federico’s claims, which arose as a result of a December 2006 accident, to be 2 per cent, both before and after September 1, 2010. I agree with her analysis and reasons and therefore conclude that The Personal should pay interest at the rate of two per cent per month both before and after September 1, 2010.

In State Farm Mutual Automobile Insurance Company and Federico, (FSCO P12-00022, June 22, 2012), Delegate Blackman refused the Insurer’s request to stay the award of interest at the rate of 2 per cent per month, pending the hearing of the appeal.

Expenses

If there is a dispute as to the payment of expenses of this motion, the parties should follow the process set out in Rule 79 of the Dispute Resolution Practice Code − Fourth Edition, Updated October 2003.

July 3, 2012

Suesan Alves Arbitrator

Date

Financial Services Commission des Commission services financiers of Ontario de l’Ontario

Neutral Citation: 2012 ONFSCDRS 102

FSCO A06-000399

BETWEEN:

Ms. T.N.

Applicant

and

THE PERSONAL INSURANCE COMPANY OF CANADA

Insurer

ARBITRATION ORDER

Under sections 279 (4.1) and 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

1. The Personal Insurance Company of Canada shall pay Ms. N the additional sum of $3,371.20 per month, commencing February 11, 2010, as interim attendant care benefits, pending the further Order of an adjudicator.

2. The Order is subject to the following conditions:

a) The Personal Insurance Company of Canada shall pay the interim attendant care benefits to counsel for the Applicant in trust for Ms. N at least once every thirty days. The Personal Insurance Company of Canada shall provide an advice memo to both Ms. N and to her lawyer of the amount and date of each payment at the time the payment is made.

b) Counsel for the Applicant and Ms. N’s case manager shall develop a plan for Ms. N’s attendant care in conjunction with Ms. N and her husband. In so far as is reasonable and possible, the plan should provide that she is not left alone for lengthy periods of time, and should compensate her husband for the provision of attendant care. The Applicant or her counsel shall notify the Insurer of the names of the attendant care providers.

c) The Personal Insurance Company of Canada shall not deduct medical and rehabilitation benefits from Ms. N’s attendant care benefits.

3. The Personal Insurance Company of Canada shall pay Ms. N interest on the sum of $3,371.20 per month at the rate of 2% per month, compounded monthly pursuant to Section 46(2) of the Schedule commencing February 11, 2010.

4. If there is a dispute as to the expenses of this motion, the parties should follow the process set out in Rule 79 of the Dispute Resolution Practice Code − Fourth Edition, Updated October 2003.

July 3, 2012

Suesan Alves Arbitrator

Date

Footnotes

1. 1Attendant care benefits are payable under Section 16 of The Statutory Accident Benefits Schedule − Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended, (“the Schedule”).
2. 2A subsequent report by an occupational therapist states that in a January 9, 2001 report, Dr. P.J. Ranalli, neurologist, stated that there was “right temporal lobe destruction.”
3. 3In a report dated October 29, 2002, Dr. G.M. Sawa, neurologist, opined “In addition, it is my opinion that the difficulties with concentration and sedation may be due to the fact that she is taking large amounts of analgesia including Percocet and Tylenol #3. ... However, she does need more appropriate pain management. I recommend that she be seen in a multi-disciplinary pain clinic at one of the teaching hospitals, such as Sunnybrook Hospital.”
4. 4It is also unclear what came of an earlier approach to resolve the dispute. According to the Report of Mediator dated January 11, 2006, The Personal agreed to pay $2,637 towards Ms. N’s marijuana expenses between January 25, 2004 and August 31, 2005 and the parties agreed that they would endeavour to agree on a physiatrist who would provide an opinion on the medications Ms. N was using.
5. 5Giacona and Liberty Mutual Insurance Company (FSCO A96-001743, November 26, 1998)
6. 6Few of the original reports were filed. In most cases I have relied on summaries of these reports provided by other health practitioners. It is not always clear which tests or subtests were administered.
7. 7The Personal objected to the admissibility of will says and letters with respect to Ms. N’s pre-accident capacity, which were annexed to Ms. N’s Affidavit. I ruled that the will says were not admissible, but reserved with respect to the signed letters. I find The Personal has placed Ms. N’s pre-accident capacity and behaviours in issue. I find the signed letters relevant and admissible.
8. 8There are only three types of attendant care contemplated in a Form 1: routine personal care, basic supervisory care and care for complex health care needs and hygiene functions.
9. 9(OIC A96-000084, July 26, 1996), confirmed on appeal (OIC P96-00073, February 4, 1998)
10. 10Ibid
11. 11(OIC A97-001551, December 15, 1997)
12. 12McMichael and Belair Insurance Company Inc. (FSCO A02-001081, March 2, 2005)